European Labour Law Jean Monnet Chair of EU Labour Law Academic Year 2018-2019 Silvia Borelli: silvia.borelli@unife.it http://www.unife.it/giurisprudenza/giurisprudenza/studiare/european-labour-law Please, check the web site for any materials distributed during the course! Lesson 4

European Social Dialogue: Definition There is no uniform definition of social dialogue at national level – each Member State has its own rules, customs and practices which define social dialogue. At the international level, social dialogue is defined by the ILO as “including all types of negotiation, consultation or simply exchange of information between, or among, representatives of governments, employers and workers on issues of common interest relating to economic and social policy” (http://www.ilo.org/public/english/dialogue/)

European Social Dialogue: Evolution 1952 Social dialogue was enshrined in the European Coal and Steel Community through a Consultative Committee which brought together representatives of employers', workers' and consumers' organisations. 1958 The Rome Treaties recognised the consultation of social partners through an advisory Economic and Social Committee which gathers representatives of various categories of economic and social activities. 1985 The 'Val Duchesse process' initiated by Commission President Jacques Delors is described as the emergence of EU cross-industry social dialogue.

European Social Dialogue: Evolution 1987 The Single European Act came into force, amending the EEC Treaty and giving EU level social dialogue its first Treaty recognition (Article 118b). ARTICLE 118b: The Commission shall endeavour to develop the dialogue between management and labour at European level which could, if the two sides consider it desirable, lead to relations based on agreement. 1989 Adoption of the Community Charter of the Fundamental Social Rights of Workers. Art. 12: The dialogue between the two sides of industry at European level which must be developed, may, if the parties deem it desirable, result in contractual relations, in particular at inter- occupational and sectoral level.

European Social Dialogue: Evolution 1991 The cross-industry social partners (UNICE, now known as BusinessEurope, CEEP and the European Trade Union Confederation (ETUC), reached their first agreement on 31 October. 1992 The social partners' agreement was incorporated almost unchanged into the Protocol and "Agreement on Social Policy" annexed to the Maastricht Treaty and signed by 11 EU Member States, excluding the United Kingdom. In October 1992, following the signing of the Treaty on European Union, UNICE, CEEP and ETUC created the Social Dialogue Committee for the cross-industry social partners. 1997 Provisions on social partner consultations and negotiations were enshrined in the Amsterdam Treaty (Art. 138 TEC, now Art. 154 TFEU, and Art. 139 TEC, now Art. 155 TFEU).

European Social Dialogue: Evolution 2009 The Lisbon Treaty, entering into force on 1 December, further strengthened the role of social partners. The new Article 152 TFEU provides that the Union as a whole – and not only the Commission – is committed to promoting EU social dialogue and institutionalised the Tripartite Social Summit for Growth and Employment. The new horizontal clause (Art. 9 TFEU) stipulates that the Union shall take into account the social dimension in defining and implementing its policies. Article 152: The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy. The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue.

Charter of Fundamental Rights of the European Union Article 28 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

European Social Dialogue: Forms Bipartite: this is the dialogue between employers' organisations and workers' organisations and it refers to discussions, consultations, negotiations and joint actions involving the two sides of industry. Tripartite: the European tripartite social dialogue involves the European institutions (Commission, and where appropriate, Council and European Council) as well as the social partners. This takes place within the Tripartite Social Summit as well as in other settings and allows for discussions on diverse policy areas, such as macroeconomics, employment, social protection and education and training. The Tripartite Social Summit, which is the highest level for tripartite social dialogue, brings together the President of the European Council, the Council Presidency and the two subsequent Presidencies, the Commission and the social partners, represented at the highest level. The Summit takes place within the context of cross-industry dialogue. Some EU policies are supported by the establishment of Advisory Committees. Some of these Advisory Committees have a tripartite structure (e.g. The European Social Fund Committee (ESF); The Advisory Committee on Safety , Hygiene and Health at Work (ACSHH); The Advisory Committee on Freedom of Movement for Workers; The Advisory Committee on Social Security for Migrant Workers).

European Social Dialogue: Levels Cross-industry: brings together both sides of industry at EU level to discuss issues relating to the whole economy and the labour market in general. On the workers' side: European Trade Union Confederation (ETUC); Eurocadres (the Council of European Professional and Managerial Staff) and European Confederation of Executives and Managerial Staff (CEC) participate in this dialogue as part of the ETUC delegation. On the employers' side: BusinessEurope (formerly UNICE); European Centre of Employers and Enterprises providing Public services (CEEP); European Association of Craft, Small and Medium Sized Enterprises (UEAPME). The Social Dialogue Committee exists since 1992 and brings together the European cross-industry social partners and representatives of national member organisations, up to a maximum of 66 representatives, equally divided between the employers' and the workers' representative organisations.

European Social Dialogue: Levels Sectoral: both sides of industry discuss on sector-specific issues. European Sectoral Social Dialogue Committees are fora for consultations on European policies. They are also tools for autonomous social dialogue among the European social partners. A Sectoral Social Dialogue Committee brings together a maximum of 66 representatives of the social partners with an equal number of employers' and workers' representatives. Sectoral Dialogue Committees are “established in those sectors where the social partners make a joint request to take part in a dialogue at European level, and where the organisations representing both sides of industry fulfil the following criteria: (a) they shall relate to specific sectors or categories and be organised at European level; (b) they shall consist of organisations which are themselves an integral and recognized part of Member States' social partner structures and have the capacity to negotiate agreements, and which are representative of several Member States; (c) they shall have adequate structures to ensure their effective participation in the work of the Committees“ (COM(1998)600).

Sectoral Social Dialogue Committees The creation of Sectoral Social Dialogue Committees has occurred in three phases: The first committees date back from the advisory and joint committees created as part of the European Coal and Steel Community Treaty. The second phase in the 1990s was linked to the emergence of the internal market. All existing Joint Committees were replaced by Sectoral Dialogue Committees as a result of the Commission Decision of 20 May 1998 on the establishment of Sectoral Dialogue Committees promoting the Dialogue between the Social Partners at European level. The creation of Sectoral Social Dialogue Committees intensified in the 2000's with the creation of new Committees. There are currently 43 Sectoral Social Dialogue Committees with 66 sectoral employers' organisations and 16 sectoral workers' organisations as recognised social partner organisations. Each Committee shall, together with the Commission, establish its own rules of procedure. The Commission facilitates dialogue between the social partners by providing organisational, financial and policy support.

European Social Dialogue: Levels Company level: the main forums are European Works Councils (EWCs) based on an EU Directive adopted in 1997 (and revised in 20092) with the main aim to provide employees with information and consultation on transnational matters.

European Social Dialogue: Procedures Article 154 points out the Commission's task to promote consultation of social partners as well as its mission to take any relevant measure to facilitate social dialogue. The Commission has the duty to consult the social partners prior to legislative proposals on social matters listed in Art. 153. The Commission regularly publishes a list of European social partner organisations which are consulted under Article 154. In the first phase, the Commission consults the EU social partners on the possible direction of a new legislative proposal in the social policy field. The social partners reply within a period of six weeks. After analysing the replies, the Commission decides whether to hold a second-stage consultation. If so, it consults the European social partners on the content of the proposal. The social partners must again reply to the Commission within six weeks. Social partners may decide to open negotiations and to deal with a specific issue through bipartite social dialogue at any stage during the two consultation phases. In this case, the Commission initiative is suspended. Article 155 allows social partners to enter into all sorts of contractual relations, including agreements, which can be implemented autonomously. It also gives the possibility to social partners to request the legislative implementation of their agreement by means of a Council Directive.

European Social Dialogue: Procedures Social partners can take part in all public consultations on non- legislative initiatives: http://ec.europa.eu/yourvoice/consultations/index_en.htm The Commission is committed to consult social partners in relation to impact assessments: http://ec.europa.eu/smart-regulation/impact/commission_guidelines/commission_guidelines_en.htm

Representativeness The requirement for the representativeness of social partners has been set out in the Communication COM/93/600 concerning the application of the Agreement on Social Policy of 14 December 1993. The Communication states that organisations should: be cross-industry or relate to specific sectors or categories and be organised at European level; consist of organisations, which are themselves an integral and recognised part of Member State social partner structures, have the capacity to negotiate agreements, and be representative of all Member States, as far as possible3; have adequate structures to ensure their effective participation in the consultation process. Representativeness was the key issue of a dispute between UEAPME v. Council of the European Union (Case T-135/96). The Court ruling underlined the necessity for the Commission services to regularly assess the representativeness of social partners' activities at European level in accordance with the criteria which were set out in Communication COM/93/600.

Representativeness Representativeness of the social partners is assessed in two phases. First, prior to the creation of any new committee, the Commission sends a questionnaire to the European social partners to obtain the information needed for a preliminary assessment of their representativeness. The second phase takes place after the committee has been established. At the request from the European Commission, a study on the representativeness of the social partners is carried out by Eurofound. http://eurofound.europa.eu/observatories/eurwork/comparative-information/representativeness-of-the-social-partners-in-the-european-cross-industry-social-dialogue

European Social Dialogue: Outcomes Categories of texts and outcomes of European sectoral social dialogue: 1) Agreements: Sub-categories: Implementation by directives; Implementation by social partners (Article 155) Follow-up measures: Implementation reports 2) Process-oriented texts : sub-categories: Framework of actions; guidelines, codes of conduct, policy orientations. Follow-up measures: Follow-up reports 3) Joint opinions and tools: sub-categories: declarations, guides, handbooks websites, tools. No follow-up clauses; Promotional activities. Social Dialogue Text Database: http://ec.europa.eu/social/main.jsp?catId=521&langId=en